International Human Rights Mechanisms, Public Participation and Fairness

Ilias Trispiotis

In April 2016, only some weeks before the EU Referendum, Theresa May argued that the country should withdraw from the European Convention on Human Rights (ECHR) yet maintain membership of the EU. In a statement of questionable constitutional deftness, the soon-to-be PM captured a decade of Tory scepticism about the democratic pedigree of the European Court of Human Rights (ECtHR) by arguing that it ‘binds the hands of the Parliament’ without placing emphasis on national security or other governments’ human rights ‘attitudes’, and defended the introduction of a British Bill of Rights in lieu of the Human Rights Act (HRA) and the ECHR.[1] Although legal scholarship swiftly exposed a series of legal fallacies in the argument,[2] there is yet another set of pressing questions requiring answers. What is the relationship between the role of international human rights mechanisms, such as the ECtHR, and democratic participation? Why do we seem to believe that deliberately weakening international human rights bodies, for instance through financially asphyxiating them,[3] could affect the quality of our democracy on a domestic level, and how could this happen? Naturally, there is a plurality of reasons in support of international human rights bodies; maintaining global peace, better international cooperation, knowledge exchange and mainstreaming human rights are only some of those reasons. But are there any other, independent reasons from democratic legitimacy and public participation?

This post will sketch only some thoughts on the multifaceted relationship between democratic legitimacy and participation, and international human rights. Before that, I have to briefly explicate a methodological caveat. Parts of international law scholarship have analysed the relationship between human rights and democracy through the lens of a putative right to democracy. This post will follow a different normative path for two main reasons. Firstly, the normative justification of a right to democracy is marred with serious difficulties ranging from the uncertainty regarding the duties that the right generates and the institutions capable of fair and reliable enforcement of those duties,[4] to specific international law constraints such as the limited scope of the principles of self-determination and self-governance and the prevalence of an institutional account of democracy focussing on public participation and regular elections, rather than on substantive commitments to equality.[5] Secondly, exploring the existence of a right to democracy is independent of the question of how international human rights mechanisms could benefit democratic legitimacy and public participation on a domestic level.

Fair representation, transparency, accountability and public participation directly inform the constitution and modus operandi of different human rights bodies; many of those, such as NGOs having a consultative relationship with the United Nations, are under a legal duty to function in accordance with a democratically adopted constitution, transparent decision-making processes, a representative structure and appropriate accountability mechanisms.[6] On another level, international human rights mechanisms continue to further unconventional, bottom-up modes of governance through informing, mobilising and giving individuals and NGOs stronger voice; as well as through improving access to collective decision-making on a national level, primarily – yet not exclusively – through the proliferation of different kinds of individual complaints mechanisms. Yet those seemingly straightforward connections between democratic values and international human rights are often challenged when different reasons, associated with different conceptions of democracy, pull international human rights courts, such as the ECtHR, towards opposite directions.

Consider the blanket ban on full-face veils in public, which the Grand Chamber of the ECtHR recently examined in S.A.S. v France.[7]The French government argued that the blanket ban pursued the legitimate aim of securing ‘living together’ and that the selection of the necessary measures to secure ‘living together’ should be the choice of the French society. In cases like S.A.S., potential intervention of the ECtHR serves both reasons from better protection of human rights – primarily freedom of religious manifestation, freedom of expression, respect for private life and freedom from religious discrimination – and reasons from political equality, social inclusion and active citizenship of Muslim women who are disproportionately affected (and at risk of further exclusion[8]) by the blanket ban. The two sets of reasons are independent but intertwined. Nonetheless, at the same time, other reasons, also associated with democracy, furnish subsidiarity and the more abstract principle that ‘better placed’ national courts should enjoy normative priority over the ECtHR whenever there is lack of ‘consensus’ among the Member States of the Council of Europe. In S.A.S., the majority of the Grand Chamber succumbed to the second type of reasons, allowing ‘wide’ margin of appreciation to France to define both the requirements of the portmanteau concept of ‘living together’ and the necessary measures that its effective protection should be able to justify.

In previous work I have questioned the compatibility of what I call ‘conformity’ interpretations of fraternity (or ‘living together’) with the role of human rights and the purpose of the ECHR.[9] Yet this post focuses on another question: should the interpretation of ambiguous legal concepts fall exclusively within a state’s margin of appreciation as a matter of democratic legitimacy? It is noteworthy that in S.A.S. the majority of the ECtHR did not directly validate the French ban on full-face veils and did not expressly answer whether the criminalisation of full-face veils was proportionate to the legitimate aim of protecting the rights of others to ‘living together’. Rather, the ECtHR held that in ‘general policy’ questions – which do include questions about which forms of our public conduct may be compatible with the majority’s interpretation of tolerance and broadmindedness – states enjoy a wide margin of appreciation that constraints the ECtHR in its review of Convention compliance. Crucially, this is a typical case where the ECtHR uses margin of appreciation in a structural (rather than a substantive[10]) form and simply refrains from making a substantive judgment as to whether a right has been violated. This structural use of the margin of appreciation is all-too-common in sensitive cases touching on morals such as, for instance, cases involving blasphemous art,[11] and has been repeatedly criticised for its association with moral relativism and for compromising the universality of human rights.[12] Although a detailed analysis of the margin of appreciation falls outside the scope of this post, its structural use is deeply problematic here. This is not only for reasons of legal coherence within the jurisprudence of the ECtHR and between the ECtHR and other international human rights mechanisms, important as those reasons may be. It is problematic because it undermines the democratic legitimacy of collective decision-making on the use of state coercion by allowing potentially impermissible moralistic majoritarian preferences into the core of its proportionality analysis.

There is an additional point. The ECtHR improves democratic participation whenever it gives voice to alternative interpretations of ambiguous legal concepts which could be at risk of being sidelined domestically. This is not only because state limitations on human rights could have a chilling effect on active citizenship and further social exclusion of specific groups. This is also because the ECtHR functions as another forum of ‘democratic iteration’ that shields the interpretation of cosmopolitan human rights norms from majoritarian appropriation. Seyla Benhabib describes ‘democratic iteration’ as a process through which a given concept is not merely ‘repeated’ in different fora, but every iteration reposits the concept and reappropriates its origin by preserving its essence through a process of continuous deployment.[13] This process of transformative iteration of legal concepts is democratic not in a formal sense focussing on specific procedures, such as voting, but in a rather ordinary demotic sense; the transformation arises out of the ‘demotic dailiness’ of the concepts’ use in the dynamism of everyday life.[14]

There are different examples of the ECtHR’s engagement in this process of democratic iteration, prominent among which could be the interpretation of pluralism, solidarity and tolerance in ways that are incompatible with conformity in our public conduct. In cases on the right to respect for private life the ECtHR has favoured not only interaction but also a ‘right to be an outsider’.^[15] In cases on denial of registration rights to specific religious groups the ECtHR has repeatedly found violations of the Convention interpreting equal respect for different religions as incompatible with intolerance and exclusion.^[16] In cases involving public expression of disturbing views, such as ‘geniocracy’^[17] or the denial of the Armenian genocide,^[18] the ECtHR has held that pluralism, tolerance and broadmindedness are at variance with censorship of opinions due to their divergence from the established ones.

Despite their factual differences, those cases exemplify some ways through which the commitment of international human rights mechanisms, such as the ECtHR, to democratic iteration of abstract yet cosmopolitan human rights norms could function as prophylaxis against illegitimate coercion; that is, against coercion grounded on impermissible kinds of reason such as majoritarian preferences that some people should enjoy less because of their beliefs or religious affiliation. It may well be that shifting our attention from formal democratic legitimacy to the more ‘demotic’ legitimacy of iteration could offer an attractive explanation of our intuition that weakening international human rights mechanisms could impact the quality of democratic participation and collective deliberation on a domestic (national, local or communal) level.